Tag: discrimination

Discrimination: Only Unlawful if It Is Unlawful

Discrimination is only unlawful if it is unlawful (or why mantras cannot be relied upon when it comes to legal advice)

My title feels like a bit of an obvious statement – but spend any time on current debates and it becomes a useful reminder. 

Discrimination is a word that has shifted in popular meaning. It relates to making choices and used to be regarded as having a more positive definition than currently. It used to suggest being discerning, recognising and understanding the qualitative difference between one thing and another. Now it is generally accepted as negative and relating to prejudice or stereotyping. Positive or negative, though – when is it unlawful?

Law is often complex, and equality law particularly so. But you wouldn’t get that from the mantras and soundbites we are exposed to in the knotty conflict between trans demands for inclusion and women’s sex based rights to single sex services and sports. Discrimination is a word we hear a lot.

Take rugby. The BBC reported that “World Rugby is considering a proposal to ban transgender athletes from women’s contact rugby due to safety concerns that they say have emerged from recent independent research, claiming there was likely to be “at least a 20-30% greater risk” of injury when a female player is tackled by someone who has gone through male puberty.

Its current rules allow trans women to play as long as they suppress their testosterone levels for at least 12 months, in line with International Olympic Committee policy. 

But the governing body has undertaken a “comprehensive review” of that policy, telling BBC Sport in a statement that it was not working.

“The latest peer-reviewed research confirms that a reduction of testosterone does not lead to a proportionate reduction in mass, muscle mass, strength or power,” said the statement.

“These important determinants of injury risk and performance remain significantly elevated after testosterone suppression.

“This presents a clear safety risk when transgender women play women’s contact rugby.”

This is presented by trans lobbying groups as “discriminatory” (by which they mean unlawfully discriminatory) and “transphobic.”

But one of the early lessons one learns as a specialist discrimination lawyer is that the equation “I have a protected characteristic and a bad thing is happening to me = unlawful discrimination” is a commonly held but also fallible view. Bad things happen all the time to people but it is not automatically unlawful or even to do with their protected characteristic. 

So a useful list of things to note when initially considering if something is unlawful discrimination:

Firstly, if the cause of the harm is related to something which is not a protected class, then it is not unlawful discrimination. So not being offered a job because you have tattoos or are left handed may justifiably feel unfair. A recent example was Conisbee v Crossley Farm where the claimant’s brand of vegetarianism was deemed a lifestyle choice not a protected philosophical belief, meaning the discrimination was lawful.

Secondly if the bad thing didn’t happen because of a particular protected characteristic it is not unlawful discrimination – like being made redundant because the factory is closing; or not being able to dine at the Ritz Hotel because you cannot afford the cost. It might be contrary to another law but this article is only looking at equality law. This is because the act alleged to be discriminatory needs to be (at least substantially) because of that protected characteristic.

Thirdly even “a bad thing is happening to someone because of their protected characteristic” doesn’t always equate to unlawful discrimination. The UK wide Equality Act 2010 is full of exceptions to the general rules and defences to what would otherwise be unlawful discrimination. 

These exceptions are extensive and cover myriad areas: decisions of judges in court; service in the armed forces being excluded from the employment provisions on disability; allowing religious groups to appoint only a straight man who is not divorced as a priest; and many, many more. 

Further, if there is a conflict of rights, this is to be balanced to ensure the most equitable outcome. However, it means that one party, despite having a protected characteristic and suffering an adverse outcome, is judged by the court not to have suffered unlawful discrimination. Examples include Ms Ladele who lost her job as a Marriage Registrar because she would not marry same sex couples because of her religious belief; or Mr Lee the gay man whose request for a slogan iced onto a cake was declined in the Ashers Bakery case. Both had a protected characteristic and something bad happened to them linked to it, but they lost.

Finally for direct discrimination (but not indirect discrimination) there is the so-called “bastard defence.” If someone treats everyone equally dreadfully, then it is not “less favourable treatment” but equal treatment. 

So back to rugby. First thing, how does the law currently permit single sex rugby? You would think that as we generally disallow discrimination on grounds of sex, then people of either sex could insist it was direct sex discrimination not to let a person of the opposite sex play in a single sex team. 

However, there is an exception allowing for single sex teams. S195 Equality Act says :

Sport

(1)A person does not contravene this Act, so far as relating to sex, only by doing anything in relation to the participation of another as a competitor in a gender-affected activity.

(2)A person does not contravene section 29, 33, 34 or 35, so far as relating to gender reassignment, only by doing anything in relation to the participation of a transsexual person as a competitor in a gender-affected activity if it is necessary to do so to secure in relation to the activity—

(a)fair competition, or

(b)the safety of competitors.

(3)A gender-affected activity is a sport, game or other activity of a competitive nature in circumstances in which the physical strength, stamina or physique of average persons of one sex would put them at a disadvantage compared to average persons of the other sex as competitors in events involving the activity.

This tells us that if the evidence shows if the sport is gender affected (as defined in s195(3)) to ensure fair competition or the safety of competitors, then, if the organisers make it single sex, it is not unlawful discrimination. 

Excluding a trans woman from the women’s team is not discrimination on grounds of gender reassignment: it’s not because of their gender reassigment that they’re not able to play on it, but because of their physically male sex. 

Further, it is arguable that if the organisers, despite evidence of safety risk or unfairness, choose not to use the exception in s195, it may in turn be unlawful indirect sex discrimination against a natal woman who is significantly disadvantaged, on grounds of safety or fairness, by the policy of letting trans women play rugby.

So, contrary to those claiming it must be discrimination, excluding trans women from women’s rugby may not be unlawful discrimination. It may feel unfair, hurtful or exclusionary but it is not unlawful discrimination. Indeed to do otherwise may itself be unlawful discrimination against natal women.

Obviously, every issue is determined by the specific evidence and until the court make a final judgment one cannot say definitively in any case whether something is or is not unlawful discrimination. Lawyers can advise based on interpretation and precedent. However, what we can say for certain that discrimination is only unlawful if it is unlawful.

Conflict of Rights

Conflicts of rights are not uncommon in discrimination and human rights cases. This is a post on how they can arise, and how they are resolved.

There are nine protected characteristics (PCs) in the Equality Act: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, sexual orientation. All of us have at least some of these characteristics, and sometimes those characteristics will give rise to competing claims.

The most common – or at least, the most litigated – of those conflicts of rights has been where sexual orientation meets religion or belief. For example, the case of Lilian Ladele, the registrar whose beliefs meant she was not prepared to preside over civil partnerships, and the Bulls, the Christian owners of the Chymorvah Hotel who would not accommodate a homosexual couple in a double room [1].

There has been a tendency among some lay commentators to regard the competing rights as a simple contest of morality. Religious beliefs being outmoded and sexual orientation progressive, the reasoning goes, it is proper that the “right side of history” should win.

But this is quite wrong. The resolution of a conflict of rights is not a search for the better, more progressive, or most popular cause. The courts are an arbiter neither of moral certainty nor social progress.

The first question has to be which position each party occupies. As a general rule, the service user can pick and choose their service provider, but the service provider must not discriminate against service users. There is nothing to stop a gay couple opting to shop at the greengrocers owned by another gay couple in preference to that owned by a heterosexual: this is not unlawful discrimination. However, a greengrocers must not refuse to sell vegetables to a gay couple because they are gay.

When it comes to a greengrocers, we are on fairly safe ground. It is extremely difficult to think of a scenario in which a greengrocers might withhold a bag of apples from a customer on the basis of a protected characteristic.

It becomes more complicated when it is the service itself which is in question. This was the subject of the Supreme Court’s decision in the Ashers cake case where Christian owners of a bakery had refused to ice the message “Support Gay Marriage” onto a cake. The Court held that the service was not refused to the claimant because he was gay, but because the bakery would have refused to ice that particular message onto a cake for anybody, regardless of their sexual orientation. The owners also had the right not to be compelled to express a political view with which they disagreed.

Another issue arises where the service provider seeks to restrict a service from one group of people in order to cater to the rights of others. It is permissible to cater a service to a group who share one or more PCs, so a lesbian support group or an over 60s night, for example. Refusing to provide the service to people who do NOT have that PC is permitted by one of the exceptions to the Equality Act – contained at paragraph 30 of Schedule 3 – as long as it is “impracticable” to provide that service to people who don’t share the PC. A lesbian support group is therefore entitled to refuse service to those who are not lesbians. (There are other exceptions, particularly in relation to sex, which will be the subject of a separate post.)

However, what happens when there is a conflict between people who do share a PC? Take a hypothetical example: a lesbian support service includes lesbians who have a religious belief and those who do not. The group may not discriminate by refusing service to those who have a religious belief, but they may refuse service to someone who has persistently evangelised the merits of celibacy for homosexuals, upsetting other members, even though the refusal of service is on the basis of a PC of religion or belief. This is what is meant by a “case by case” basis.

Where a service provider does feel the need to discriminate against a service user on the basis of a PC, the question is then: is it a proportionate means of achieving a legitimate aim? In the example above, the legitimate aim is the ability of the wider group to continue to access the service, and would be proportionate because it does not involve a blanket ban on all those with a religious belief.

In summary,

  • Rights may conflict. This is not unusual, and it is not an automatic indication of bad faith or bad practice on the part of a service provider;
  • Resolution of a conflict of rights is not assessed on who has the ‘better’ or more progressive cause: there is no hierarchy of rights;
  • A key question is whether there any discrimination involved is a proportionate means of achieving a legitimate aim.

[1] Although these cases pre-date the Equality Act 2010, essentially the same considerations apply, and as Hale LJ noted at §40 in the Bulls’ case, the slightly different formulation of the 2010 Act would not have led to a different result.

Legally this is not a “trans rights issue” it’s a “sex rights issue”. A blog about boxes

The discussion on reform of the GRA isn’t about protection from discrimination – it’s about who comes within the classes of ‘men’ and ‘women in the Equality Act 2010.

The way the issue is portrayed by lobbyists, most politicians, many corporates and the media, is legally wrong.

The “trans rights debate”, in terms of equality law, isn’t about rights for trans people not to be discriminated against or harassed unlawfully because they are trans. Properly, that right is already contained in Section 7of the Equality Act 2010, under the protected characteristic of “gender reassignment” and covers people, anywhere along the “transition” route whether they have had surgery, hormones or not, and whether they even progress down that route or not. I have taken, and will, no doubt continue to take, claims about discrimination on grounds of gender reassignment, regardless of what other possible legal changes occur around the Gender Recognition Act 2004 (more of that later).

No, this is, in law, a sex-based rights argument about who comes within the class of men or women in Section 11 of the Equality Act. 

But let me go back a bit. To truly understand the Equality Act 2010, you need to understand about protected characteristics, contexts and comparators. The Equality Act is complicated. It has a lot of common principles and then a lot of exceptions to make the Act workable and deal with specific needs and contexts.

Protected Characteristics (the boxes)

There are nine protected characteristics or classes (PCs). They are sex, race, religion and belief, sexual orientation, gender reassignment, disability, age, pregnancy and maternity, and marriage and civil partnership.

Each PC is defined in Sections 5-12 (plus 17 and 18) of the Equality Act. The protected characteristics are essentially each a legal box. To be able to bring a claim, you must first show you fit into that box legally by meeting the relevant definition in the box; whether it is the disability box, the age box or the sex box etc. 

All of us fit into several of these boxes, but in law you need to show, by evidence if challenged, how you fit into the box under which you are claiming protection. So, for disability discrimination you show how you are disabled. For religion and belief, you show how you meet the relevant test for religion or non-religious belief. This preliminary jurisdictional point on whether gender identity theory (or the non-belief in it) was a protected belief was the subject of the well-known Forstater case, now under appeal.

Some boxes have also sub-dividers which I will call sub-boxes; so for sex, are you a man or a woman? For sexual orientation whether you are sexually attracted to people of the same sex, opposite sex or persons of either sex? And so on.

These sub-boxes are important for comparators, which I will explain later.

Each protected characteristic pleaded must be considered separately as the newly elected Conservative Government, which came in just as the Equality Act was passed, never enacted a clause contained in the Equality Act which would have allowed for cases on combined discrimination grounds. 

Comparators

The next aspect you need to understand are comparators. For some types of discrimination, you must show evidence of what the act or decision caused to happen to you by reference to the comparative treatment of another very similar person who doesn’t share your PC. 

You must provide evidence regarding that other person; they will often be a real person who is in same situation but not sharing your PC (ie your box or sub-box). If there is no one to compare yourself to, you can ask the court to use a hypothetical comparator. So, a woman who claims direct sex discrimination will have to show evidence she was treated less favourably than a man – either by comparison to a real man or by comparison to how a man would have been treated in the same situation.

Importantly you cannot use someone of your own box or sub box as a comparator. So, if a woman is discriminated against compared to another woman that is not unlawful direct sex discrimination. The comparator needs to be a legal man. And this is true of other characteristics. So, someone who is sexually attracted to the same sex is compared to someone who is not attracted to the same sex.

How terms like sex are defined and in which sub box you fall is key to success or failure to even starting a discrimination claim.

Types of Discrimination, Contexts and Exceptions

There are different types of unlawful discrimination. They are direct (s13) indirect (s19), harassment (s26) victimisation s27); pregnancy and maternity discrimination (s17 and 18); discrimination arising from disability (s15) and failure to make reasonable adjustments (ss20-21).

The context of discrimination is important. If you cannot fit into any context covered by the Equality Act, you cannot bring a claim under this Act. For example, if a random person in the street racially abuses you, you cannot bring a claim under the Equality Act against them. It might be a hate crime, but this is dealt with under criminal law and not the Equality Act. Some acts (e.g. racist assault at work) may be both a claim under the Equality Act and a hate crime and dealt with very differently.

Practically all of the Equality Act is about civil, not criminal, matters. Primarily, any alleged breach is dealt with by civil action taken in the County Court, Employment Tribunal or First Tier Tribunal (Special Educational Needs and Disability Tribunal) depending on issues. (There are separate issues arising from the Public Sector Equality Duty and the possibility of judicial review, which are beyond the scope of this article).

Finally, and importantly, there are many, many exceptions in the Equality Act which are designed to make it workable.

How to analyse a discrimination claim?

To show how I would analyse possible discrimination, these are the steps I would take if a client was asking for advice about a possible unlawful discriminatory act.

  1. What is the protected characteristic my client is relying upon?

For illustrative purposes for this blog, I will look initially through a sex-based lens to show how the Act is defined; but it is important to consider possible conflict with others protected classes’ rights

Does the issue relate to PC of sex? The Act defines sex as 

“11. Sex

In relation to the protected characteristic of sex—

(a)a reference to a person who has a protected characteristic is a reference to a man or to a woman;

(b)a reference to persons who share a protected characteristic is a reference to persons of the same sex.”

Man and woman are both defined in s212(1), 

“man” means a male of any age;

“woman” means a female of any age.

The Conflict With Competing Trans Rights

And this is where the conflict with competing trans rights occurs. It is essentially a dispute over which sex sub-box someone is determined by law to occupy for the purposes of sex discrimination and harassment.

This is not about the majority of trans people, who self-identify. In current law, self-identifying trans people retain their birth sex when the issue of sex discrimination arises. So, for example, a self-identified transwoman who is harassed at work would typically claim on the basis of her PC of gender reassignment, rather than a sex discrimination claim. 

Legally, as well as all those who were born and “live” in their particular sex sub box of man and women there is the issue of some of the c5000 trans people currently holding Gender Recognition Certificates (GRC) in the UK. 

Under Section 9 of the Gender Recognition Act 2004 (GRA), holding a GRC “changes” the person’s gender. But the statute is very badly worded and conflates sex and gender, when it actually means legal sex. The effect of s9 (1) of the GRA is to move a person from one sex sub box to the other.

Section 9(1) says that this is “for all purposes,” but in fact s9(3) then goes on to qualify the principle by making it subject to “provision made by this Act or any other enactment”. So, essentially this change is limited by what this and other Acts say, meaning that one can still in some circumstances distinguish biological and legal sex for some purposes. As I say, badly worded. Is it also worth commenting that subsequent statutes have not made clear when s.9(1) GRA does or does not apply.

So, this change of sub-box only applies currently to those with GRCs. However, many people, for reasons unrelated to the Equality Act, want to change this process.

All of the political, rather than legal, arguments are about whether this GRC process should have any element of “gatekeeping” (the steps in the GRA needed to obtain a GRC) or whether the process should just rely on statutory declaration so that anyone could just change their sub-box.

So much of the wider public discussion seem only to be about the impact on trans people of changing or not changing the GRC process, rather than on anyone else, whom they either ignore or dismiss as reactionary bigots. 

However, as a discrimination solicitor, what I find more worrying is that there has been little or no discussion about the legal effects of such a change on sex discrimination and comparable issues like equal pay (chapter 3 Equality Act) or reporting on the badly named “gender pay gap” (The Equality Act 2010 (Gender Pay Gap Information) Regulations 2017). Many gender critical feminists are more focussed on the potential impact on single sex exemptions (which I share but won’t focus on here).

I can find very little good analysis even on how many people are estimated to jump from one sex sub-box to the other. Nor on what impact it will have, whether on the existing rights of those in the sub box or what happens if a party to a sex discrimination claim has changed which sex sub box they fall in. It is not even clear how many trans people there are in the UK, with the Government estimate being between 200-500,000. For Equality Act purposes, how many of this demographic are in employment or education? How many use which services? Or, if there is any industry (such as IT small businesses) where there are disproportionately higher numbers of trans people, will that have an effect on sex based equality rights in practice? 

The truth is I don’t know answers to these questions; and I want someone to do the necessary objective research and analysis. 

However, the #NoDebate stance of Stonewall and their allies, which has fuelled no-platforming and complaints about anyone seeking to do academic study deemed by an unseen mob not to follow a pro trans rights line has meant this otherwise normal objective enquiry and legal debate has not happened.

There are a few exceptions. For example this is an article which does attempt to do so and worth reading. But we need more academic studies to look objectively at these issues.

So back to my theoretical client. What is the next issue I have to address?

What type of discrimination is alleged? For example, is it:

“s13. Direct discrimination

(1)A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.”

So, we need to show: 

  1. A comparator (a real person or hypothetical one, drawn from evidence showing what would have been done to a real person) of the comparator class (so if our client is a woman, her comparator is a man)
  1. that the alleged act, happened because of the protected characteristic

Or another example: 

“19. Indirect discrimination

(1)A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s.

(2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B’s if—

(a)A applies, or would apply, it to persons with whom B does not share the characteristic,

(b)it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,

(c)it puts, or would put, B at that disadvantage, and

(d)A cannot show it to be a proportionate means of achieving a legitimate aim.”

A rule or policy, applied to everyone, applies to this client, which has a disadvantage to some (including this client) because of their PC compared to others; and it cannot be objectively justified. 

In both direct and indirect discrimination there is reference to comparators. So, who the comparator is and which sub box they fall into is a live issue.

Next, what is the context in which this alleged discrimination took place?

The Equality Act only applies in certain contexts including work, some housing, education, some transport, provision of services to the public, some clubs and associations, trade unions, public functions, occupational pensions and insurance. The law is complicated so you cannot assume whether the Act applies or not without careful analysis. Certainly don’t listen to odd voices on Twitter saying it does not apply to you if you are self-employed (as some are covered), a contractor (as sometimes covered), or the alleged discriminator is not your employer (sometimes covered).Finally, and very importantly, does it fall into an exception in the Act? I could write another whole article on exceptions, so will leave it there.

Only after considering the client’s own evidence and jumping through all of these hoops can I say it could be unlawful discrimination. Be warned: at this point, I am yet to see the other side’s evidence which comes out as litigation proceeds, so have to review constantly the strength of the claim. 

So, discrimination claims are legally complex and challenging which is probably why I enjoy this area of law.

Conclusion

Going back to the title of the piece, the current toxic debate about “trans rights” is actually a legal fight about the sex sub boxes and who is legally in which? If someone gets a Gender Recognition Certificate it does now and will impact on whether you can use that person as a comparator. So, changes to the GRA affect sex discrimination laws profoundly. The fact that the “gatekeeping” has kept the numbers low means it has not been an issue to date. There are not huge numbers of sex discrimination claims anyway, so the issue is largely unlitigated, as yet. In addition, the breadth of the definition of gender reassignment in the Equality Act (which does not require surgery or any treatment) means trans people have significant protection against unlawful discrimination just for being them in key areas such as work, education and access to services.

However, if the estimates of numbers of trans people are correct, then thousands or hundreds of thousands may be eligible to apply for a GRC. If the law is changed to allow for self-identification, this would increase the risk of adverse impact on sex based rights in some cases by, in practical terms changing who can and cannot be used as a legal comparator. Some people may not be able to pursue claims for direct or indirect sex discrimination because of it. Yet this change has hardly been discussed, analysed or researched.

This is why we need a proper debate.

Biography

I am a discrimination solicitor who, unusually, puts my head above the parapet on social media. I tweet openly as @AudreySuffolk about my subject. As part of my commitment to public legal education, I give my general opinion where I think people have got rights under equality law. More recently, I’ve done so with regards to the heated gender identity/trans rights versus women’s rights conflict. I tweet politely and try to assume interest and goodwill from those who correspond with me. Sadly, this is seldom replicated by some who engage with me with hostile condemnations (now known to me as the “die in a fire scum TERF” brigade). I believe that people who come under all nine protected classes have equality rights, but sometimes those rights conflict and have to be balanced, in accordance with the principles of UK Equality law

For this, I have been complained about to my employers, to our funders and to our professional network, despite these explicitly being my own thoughts and not necessarily shared. Luckily, all the organisations have shown backbone, but others have not been so fortunate.